Bessette/Pitney’s AMERICAN GOVERNMENT AND POLITICS: DELIBERATION, DEMOCRACY AND CITIZENSHIP reviews the idea of "deliberative democracy." Building on the book, this blog offers insights, analysis, and facts about recent events.

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Sunday, July 23, 2017

Self-Pardon

As is the case with a number of important constitutional issues, the answer to the question here of whether or not the president can pardon himself exists in gray area. Or put more bluntly, the answer is, "Who the heck knows?" This is partly because this is simply not a question we ask ourselves very often.

Let's take a step back and remember the unique reality we all now inhabit. This is not an issue which the courts have been asked to answer. Why? Because a president is rarely in the position of asking whether he will pardon himself.

The Constitution means whatever the courts say it means. If the US Supreme Court decided tomorrow that the word "emolument" actually means "sunglasses," then that is the law of the land. Congress would have to ratify an amendment to the Constitution to change or override that interpretation. Article II, Section II of the Constitution provides that the president "shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

In addition, the language of the clause and Supreme Court case law seems to assume that there is someone giving the pardon (let's call this person Mr. President) and someone receiving the pardon (let's call this person Mr. Not President). Put another way, the language seems to assume there is a grantor and a recipient who are two different people.

But a conclusion based on natural law and an assertion that the language "seems to assume" something is hardly a conclusion you want to take to the proverbial bank.